The only success in curbing mistreatment of refugees has been in the High Court. Now the government is targeting the lawyers who bring the cases. By Mike Seccombe.

Stalling the lawyers who aid asylum seekers

When David Manne, executive director of Melbourne’s Refugee and Immigration Legal Centre, goes courting people with good hearts and deep pockets these days, he takes a prop with him. A big wad of impenetrable bureaucratic forms.

As the target politician or potential donor leafs through it, Manne gives his pitch for money. It’s not something he is particularly comfortable doing. He is a lawyer, not a fundraiser. Nine times he and his organisation have been involved in High Court challenges to federal government immigration policies, and nine times they have prevailed.

Battles won, but not the war. Right now, the battle is for funds, because the Abbott government, in its relentless campaign to deny asylum seekers, is adopting a starve-them-out strategy. 

Manne’s pitch goes something like this: “Let’s take Ali, an Afghan refugee with little English. How can Ali complete at least 62 pages of forms, containing 184 questions about his life, and on top of that make a detailed written statement about his fears, all in English, without legal assistance?”

The answer to the question seems pretty obvious: Ali is unlikely to be able to do it. Which appears to be what the Abbott government is intending.

As of a couple of weeks ago, the government lifted its stay on processing the claims of the tens of thousands of asylum seekers who arrived in Australia by boat between August 13, 2012 and the start of last year. Letters have started going out “inviting” these people to apply for temporary protection visas (TPVs), which would allow them to stay in the country for a further three years.

Having in some cases left them in legal limbo for close to three years because – the letters put it “… as an unauthorised maritime arrival … you were prevented by subsection 46A(1) of the act from lodging a valid application for any visa while in Australia” – the government now is moving with remarkable haste.

Those asylum seekers wanting to avail themselves of TPVs are given 28 days to lodge their applications under the government’s new “fast-track” processing system.

“This is profoundly concerning. It’s a very serious situation,” says Manne. “As the federal government starts to process the cases of 31,000 asylum seekers and refugees seeking protection here, there have been major cuts to funding for legal assistance. More than 80 per cent of funding for our core client work has been cut. It’s a massive cut.”

This cut applies not just to Manne’s organisation but also to all organisations providing legal help for asylum seekers.

As Tanya Jackson-Vaughan, executive director of the Sydney-based Refugee Advice and Casework Service, explains: before the last election all agencies got money to provide legal assistance to asylum seekers on a fee-for-service basis under a program called the Immigration Advice and Application Assistance Scheme.

“This was cut in September 2013 when the Coalition came in, and from that point on we weren’t referred any more clients who came by boat,” she says.

“This funding had been bipartisan [for about 20 years] before this government. It was quite limited, but it was expanded by Labor, who at least realised people need assistance when they come off a boat and are vulnerable and can’t speak English.”

The scheme is not entirely gone. Money is still available for legal assistance to asylum seekers who arrive by air. Still the government expects a substantial saving – about $100 million over the next four years.

“What it meant for us was 85 per cent of our money went,” says Jackson-Vaughan. “So last year we hired a fundraiser. We had to become a fundraising entity as well as a legal centre.” 

So has David Manne. And the more time he and others like him have to spend raising money for this ground-level legal assistance, the less time and money they have to devote to the High Court actions that curtail government excess.

As well as becoming fundraisers, the organisations have had to become innovative in the way they provide help. Instead of one-on-one consultations, they have begun offering mass clinics.

“We run them twice a week,” says Jackson-Vaughan. “We have maybe 100 or 150 volunteer lawyers, overseen by us. We also have volunteer interpreters, because the government also cut funding to interpreting services, which is another big issue.”

The government, it seems, is determined to frustrate the process at every step. It has a website explaining how to apply, but it is only in English, and a particularly dense, bureaucratised version of English at that.

But that is not the real catch-22.

Asylum seekers are all subject to an entry interview when they first come in contact with immigration authorities, and access to those records of interview, says Jackson-Vaughan, is “vital” to the application process. 

But getting them requires a freedom of information request.

“And often it’s not just the entry interviews we have to FOI, but identity documents as well. We’ve just received direction from the FOI section saying they can’t cope with the numbers of FOI requests.”

Asylum seekers and their legal helpers face a situation where one part of the Department of Immigration is demanding visa applications be made within 28 days, and another is saying it cannot provide relevant information in that time.

The sector is unsure how this will resolve itself. They are used to working with such uncertainties, though. Another example is something called the Primary Application Information Service (PAIS), which began this week and is intended to partially replace the previous scheme – although only to the tune of $3 million over two years.

“It is a much smaller amount of money, available only to those deemed vulnerable or to unaccompanied minors,” says Jana Favero, the advocacy and community education manager for the Asylum Seeker Resource Centre. “We don’t yet know how many people that might cover, how many will be able to access PAIS. We guess 10 or 20 per cent at most.”

There is no clear indication of who might qualify as “vulnerable”.

But given that the historical record shows that upwards of 80 per cent of asylum seekers are ultimately found to be genuine refugees, she says, it might safely be assumed that more than that percentage are actually vulnerable.

And given that the government says there are about 24,000 people eligible under the new fast-track scheme, somewhere close to 20,000 will be reliant on the pro-bono assistance of legal services.

That is the way of things, for those trying to bring some legal certainty and at least a modicum of due process to matters relating to asylum seekers.

Which brings us back to David Manne and his organisation’s High Court challenges. Let’s go to just a couple.

Back in 2011 he ran the so-called “Malaysian solution” case, which scuttled the then-Labor government’s plan to expel asylum seekers to Malaysia.

Under a deal with the Malaysian government, Australia would have accepted 4000 people certified as refugees from Malaysia in return for the Asian country taking 800 boat arrivals.

Manne took a case to the High Court, arguing that under the terms of the Migration Act, a recipient country had to be able to provide proper protection. Malaysia was not a signatory to the 1951 refugee convention.

By a 6-1 margin, the court determined the government could not do it. It was a big victory for Manne and a great relief for his Afghan clients.

But it was not a lasting victory.

As Human Rights Commission president Gillian Triggs put it in a speech two weeks ago, the government simply returned to parliament “to delete the offending clause” in the act.

The same year Manne mounted a case relating to the government’s “non-statutory” system of determining refugee status in offshore detention centres. Essentially the government position was that because these people were not held in Australia, Australian rules did not apply.

In a unanimous 7-0 judgement, the High Court held that offshore processing had to be constrained by and conducted under Australian law, including procedural fairness.

As Manne points out, the subsequent reconsideration of the claims of the affected asylum seekers overturned more than 80 per cent of the initial determinations. “In turn, tens of thousands of refugees have obtained protection.”

But as we have seen, the standards of assessment within Australia have since been weakened.

To quote Triggs again, from her speech at the annual Human Rights Dinner: “Time and again the High Court has constrained the use of executive discretion by the government by reference to statutory principles of interpretation that respect the principle of legality. Time and again the government has been successful in asking parliament to tighten up legislation to permit what was hitherto illegal.”

In this struggle, a win is often hollow. But a loss can amount to a gain.

To illustrate, take another example, this time from Hugh de Kretser, executive director of the Human Rights Law Centre, which joined Shine Lawyers in bringing to the High Court the case of 157 Tamil asylum seekers, detained for almost a month aboard a customs vessel after having been intercepted near Christmas Island earlier this year.

“They used a satellite phone to call and say their engine was failing. Then suddenly there was no contact at all,” de Kretser says. “There was a farcical press conference where the minister refused to even confirm these people were being held at sea. There were relatives who thought the worst, that these people had died at sea. But actually what we had was incommunicado detention on the high seas. It was not until the High Court case that the government broke its secrecy and admitted the people, including 50 kids as young as one, were in their custody.”

The court ultimately ruled 4-3 that the government had not acted illegally.

Thus, says de Kretser, the government could call it a win.

Yet the action did breach the government’s secrecy about “on-water” matters. It prevented the hapless Tamils from being put into orange lifeboats off the coast of India.

They have ended up in prolonged, indefinite detention on Nauru, but they will at least have their claims assessed under a system somewhat fairer than might have been the case had they been expelled to India or Sri Lanka.

Again, though, the government made legislative tweaks as the case was proceeding, in response to the arguments of lawyers acting for the asylum seekers.

It happens with frustrating frequency, says de Kretser. The government either changes the legislation, or settles an individual case to avoid a court determination that might go against it.

“At the same time [as the Tamil case] Maurice Blackburn was running the case of babies born in Australia to asylum-seeker mothers. Part way through, the government changed the legislation to definitively say a baby born here is an unauthorised maritime arrival, as absurd as that sounds,” de Kretser says. “But to get that legislative change through the senate it had to allow around 100 babies born in Australia to stay. So for that firm and its clients there has been a good outcome, but it’s been a bad outcome in terms of regressive legal change.” 

The fact is, except in rare cases where the Australian constitution comes into play, the law is what the parliament says it is. Like Triggs told her audience: “Our constitution protects the freedom of religion, the right to compensation for the acquisition of property and the right to vote, and implies a right of political communication … but very little more. As is well known, unlike every other common law country in the world, Australia has no bill of rights.”

Manne refers to an effort by government to “take the law out of the law”. De Kretser speaks of the current government’s “contempt” for due legal process. Triggs sees “a growing threat to democracy is the expansion of discretionary, often non-compellable, ministerial powers that may be exercised with limited or no judicial scrutiny”.

We see it most clearly in the way government deals with the most vulnerable – refugees. But, as the trio warns, we should not for a minute imagine it is limited to them. Says de Kretser: “We see this as a disturbing trend, not isolated to the rule of law as it applies to refugees, but across a whole range of democratic and human rights safeguards.”

The power, for example, for ministers to decide citizenship without any court review. The attempts to make migration decisions unreviewable by courts. Laws limiting the capacity to protest. Laws restricting access to information. The trend to greater secrecy.

“We want people to draw the threads together,” de Kretser says. “Whatever their views about asylum-seeker policy or environmental law or counterterrorism, people should be very concerned about what’s happening to these vital democratic and human rights safeguards built up over decades and centuries.”

This article was first published in the print edition of The Saturday Paper on June 20, 2015 as "Stalling lawyers who aid refugees".

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Mike Seccombe is The Saturday Paper’s national correspondent.

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